Unsealed documents: Deputy says man’s shooting was justified

By JONATHAN DREWApril 23, 2018

RALEIGH, N.C. (AP) — A federal judge unsealed court documents Monday that show a North Carolina deputy’s strategy for fighting a wrongful death lawsuit by the family of a man fatally shot on his porch in 2015.

U.S. District Judge Terrence Boyle made the documents public after media outlets had argued there was no compelling reason for keeping the information secret. Lawyers representing a law enforcement agency, the Harnett County Sheriff’s Office, argued they were following laws requiring secrecy for certain investigative documents. The judge said he found no “important governmental interest” was served by keeping them under seal.

The media outlets — The News & Observer, The Fayetteville Observer, WRAL-TV, WTVD-TV and The Associated Press — said their goal was transparency, not influencing the outcome of the case.

The documents elaborate on the timeline and circumstances surrounding the death of John David Livingston, who was fatally shot in 2015 by a Harnett County deputy. Authorities and defense attorneys have previously said Livingston was intoxicated and had seized the deputy’s stun gun, causing the officer to fear for his life.

But Livingston’s mother and other plaintiffs argue that his death was the culmination of a pattern of excessive force by the former deputy, Nicholas Kehagias, and others. A grand jury declined to indict Kehagias, who has resigned from the sheriff’s office. The lawsuit argues that deputies went to Livingston’s house without a warrant while looking for another person and provoked an altercation.

In an unsealed affidavit, a state toxicologist said testing showed Livingston had enough alcohol in his system to be legally impaired and that he also tested positive for cocaine. The affidavit noted cocaine abuse is associated with euphoria and agitation.

Also among the newly unsealed documents is a 13-page timeline that argues the deputy opened fire only after he had been shocked with his own stun gun during a protracted struggle with Livingston. The document was assembled by defense attorneys from depositions and investigative records.

Kehagias, who also used pepper spray on Livingston, said during a deposition that “everything I tried to use on him was ineffective.”

Kehagias told a crime scene investigator that he had been shocked by the stun gun, and an SBI agent testified that the agency took photos of red marks on the deputy’s abdomen. An electronic log unsealed Monday shows the Taser was discharged five times over about five minutes.

The timeline shows how defense attorneys are piecing together information — even from Livingston’s own friends — to argue the shooting was justified. His roommate, Clayton Carroll, said in a deposition that he saw Livingston’s hand on the stun gun, but he didn’t think his friend had control of it. Another friend said he couldn’t see where the stun gun was at the time of the shooting.

In the deposition, Carroll recalled that Kehagias said, “He’s got the Taser. He’s got the Taser,” before firing several shots at Livingston from close range.

“But he didn’t have the Taser,” Carroll said of Livingston. “It was dangling in his hand. It was — he never had control of the Taser.” __